比例原则目的正当性审查方法新论——一个融合法经济学、商谈理论的视角

翟翌，金龙君

PDF
Cite
Share

facebook

twitter

google

linkedin

March 2024

Article Contents

Citation: ZHAI Yi. A New Discussion on the Justification Review Method of the Principle of Proportionality—— A Perspective that Integrates Law,Economics,and Negotiation Theory[J]. Academic Monthly, 2024, 56(3): 107-119. shu

A New Discussion on the Justification Review Method of the Principle of Proportionality—— A Perspective that Integrates Law,Economics,and Negotiation Theory

ZHAI Yi

Abstract

The lack of appropriate review methods has led to disputes over the hierarchy of the principle of legitimacy of purpose,as well as issues such as review misalignment,insufficient review,excessive subjectivity,and inaccuracy caused by some scholars simply copying the principle of reasonableness of common law to determine the inappropriate purpose in the principle of proportionality.The key to solving the problem lies in reconstructing the method of examining the legitimacy of the purpose.The principle of proportionality,the common methods of law and economics,and negotiation theory can be integrated to construct a new approach for examining the legitimacy of purposes.Starting from the “comparative” thinking,the purpose of examining the legitimacy of purposes can be classified into two categories: “the purpose of realizing (safeguarding) rights (interests)” and “the purpose of restricting rights (interests)”,and the corresponding objective and subjective content can be compared and examined.In the review process,the objective content corresponding to the purpose should be quantified and reviewed first,and then the subjective content corresponding to the purpose should be reviewed.In terms of examination standards,based on the improvement of Kaldor Hicks,the objective content corresponding to the legitimacy examination standard quantified by law and economics is that the value of “realization (protection)” is greater than “limitation”; The examination of subjective content corresponding to the purpose is achieved through equal and free negotiation.The objective and subjective content corresponding to the purpose has passed the legitimacy review,and the purpose is legitimate.By combining the advantages of the principle of proportionality and the principles of law and economics,and using the common “comparison” method of proportionality,law and economics,and negotiation theory as the connection point,we can better understand and practice the principle of proportionality.
- the principle of proportionality,comparison,legitimacy of purpose,law and economics,negotiation theory
References
Access
1. [1]
  . . Academic Monthly, 2017, 49(03): 102-111.
2. [2]
  . . Academic Monthly, 2016, 48(06): 76-84.
3. [3]
  Zhongjiang WANG . The Basis of Legitimacy of Political Power: The Form and Constitution of Early Confucianism “Theory of People’s Wishes”. Academic Monthly, 2021, 53(3): 5-16.
4. [4]
  WANG Zhengxu . What is Good Government—— East Asian Peoples Evaluation of Government Legitimacy and Competence. Academic Monthly, 2023, 55(10): 75-87.
5. [5]
  Defeng WANG , Minqi ZHANG . On the Non-Historical Nature of Economics. Academic Monthly, 2021, 53(7): 22-35.
6. [6]
  Liang SUN . Reconstruction of the Concept of Sociality in the Context of Critique of Political Economy. Academic Monthly, 2022, 54(4): 14-21.
7. [7]
  Weisen LI . Rereading Keynes: Evolutionary Formation and Theoretical Criticisms of Keynes’ Economic Theory on Depression. Academic Monthly, 2022, 54(3): 72-100.
8. [8]
  LIU Shouying . Political Economy in the Communist Party of China's Theoretical Creation. Academic Monthly, 2024, 56(3): 53-69.
9. [9]
  . . Academic Monthly, 2016, 48(08): 5-15.
10. [10]
  . . Academic Monthly, 2016, 48(07): 5-19.
11. [11]
  . . Academic Monthly, 2017, 49(02): 64-79.
12. [12]
  Chusheng YE , Zhaoke REN . The Network Analysis in Economics and the Economic Research of the Network. Academic Monthly, 2019, 51(5): 39-46, 38.
13. [13]
  . . Academic Monthly, 2017, 49(08): 80-87.
14. [14]
  Ye’an ZHOU . Is Economics Seeking a New Micro Basis. Academic Monthly, 2020, 52(12): 30-41.
15. [15]
  Shuguang ZHANG , Chi ZHANG . Institution Economics of the Right. Academic Monthly, 2020, 52(1): 40-51, 83.
16. [16]
  Wei LIU . The Doctrinal System and Theoretical Logic of Xi Jinping’s “Socialist Political Economy with Chinese Characteristics”. Academic Monthly, 2021, 53(5): 5-16.
17. [17]
  Liangping SHI , Suyun WANG , Jingjing WANG . Economic Analysis from Stock to Flow: On the Construction of Theoretical Framework of Flow Economics. Academic Monthly, 2019, 51(1): 50-58.
18. [18]
  , . . Academic Monthly, 2018, 50(01): 78-84.
19. [19]
  ZHANG Yibin . Exchange-Value: From the Usefulness of “For People”to the Equivalence of “For Money”— A Reexamination of Marx’s Economic Manuscripts 1857-1858. Academic Monthly, 2023, 55(5): 5-16.
20. [20]
  Jiaxin ZHOU . Critical Economics and Philosophy of Praxis. Academic Monthly, 2019, 51(3): 17-25.

Get Citation

PDF

XML

Entire Issue PDF

Article Metrics

Article views: 163 Times PDF downloads: 4 Times Cited by: 0 Times

Metrics

PDF Downloads(4)
Abstract views(163)
HTML views(48)

Latest
Most Read
Most Cited

通讯作者: 陈斌, bchen63@163.com

1.
沈阳化工大学材料科学与工程学院沈阳 110142

A New Discussion on the Justification Review Method of the Principle of Proportionality—— A Perspective that Integrates Law,Economics,and Negotiation Theory

ZHAI Yi

Abstract: The lack of appropriate review methods has led to disputes over the hierarchy of the principle of legitimacy of purpose,as well as issues such as review misalignment,insufficient review,excessive subjectivity,and inaccuracy caused by some scholars simply copying the principle of reasonableness of common law to determine the inappropriate purpose in the principle of proportionality.The key to solving the problem lies in reconstructing the method of examining the legitimacy of the purpose.The principle of proportionality,the common methods of law and economics,and negotiation theory can be integrated to construct a new approach for examining the legitimacy of purposes.Starting from the “comparative” thinking,the purpose of examining the legitimacy of purposes can be classified into two categories: “the purpose of realizing (safeguarding) rights (interests)” and “the purpose of restricting rights (interests)”,and the corresponding objective and subjective content can be compared and examined.In the review process,the objective content corresponding to the purpose should be quantified and reviewed first,and then the subjective content corresponding to the purpose should be reviewed.In terms of examination standards,based on the improvement of Kaldor Hicks,the objective content corresponding to the legitimacy examination standard quantified by law and economics is that the value of “realization (protection)” is greater than “limitation”; The examination of subjective content corresponding to the purpose is achieved through equal and free negotiation.The objective and subjective content corresponding to the purpose has passed the legitimacy review,and the purpose is legitimate.By combining the advantages of the principle of proportionality and the principles of law and economics,and using the common “comparison” method of proportionality,law and economics,and negotiation theory as the connection point,we can better understand and practice the principle of proportionality.

HTML

Relative (20)

DownLoad: Full-Size Img PowerPoint

Return

A New Discussion on the Justification Review Method of the Principle of Proportionality—— A Perspective that Integrates Law,Economics,and Negotiation Theory

Abstract

References

Access

Article Metrics

Metrics

通讯作者: 陈斌, bchen63@163.com

A New Discussion on the Justification Review Method of the Principle of Proportionality—— A Perspective that Integrates Law,Economics,and Negotiation Theory

HTML

目录